Ohio’s school funding system remains unconstitutional despite state government-proposed remedies, a Perry County judge ruled Friday, and an Ohio State University official said he is concerned that the decision could eventually jeopardize funding for higher education.Meanwhile, in the highly probable event that the state appeals the decision to the Ohio Supreme Court, an OSU law professor now serving as state solicitor said he will not represent the state – as state solicitors usually do in cases such as this – because of an earlier brief he coauthored that called Ohio’s pre-1996 school funding system unconstitutional.
Judge: Problems are ‘deja vu all over again’
“Hearing the problems that continue to plague the schools of this state, without relief in sight, reminds this court of baseball great Yogi Berra’s confused quote … ‘It’s like deja vu all over again,'” wrote Linton D. Lewis, judge of the Perry County Court of Common Pleas, in his decision Friday.The school funding case began in 1991 when activists used the case of Nathan DeRolph, then a ninth-grade student at a Perry County high school and now a senior finance major at Ohio State, to argue that Ohio’s primary and secondary school funding system did not adhere to an Ohio Constitution mandate that the General Assembly “secure a thorough and efficient system of common schools throughout the state.”Lewis found the funding system unconstitutional in 1994, and the Ohio Supreme Court upheld his decision in 1997, telling lawmakers to find a remedy for the funding problem.The General Assembly responded by passing several pieces of legislation, including House bills 650, 770 and 412 and Senate bills 55 and 102, in an attempt to comply with the order.”One of the central issues in the case at bar is whether the State of Ohio has eliminated the foundation formula found unconstitutional by this court and the Ohio Supreme Court,” Lewis wrote in the Friday decision.His answer: The changes adopted by the General Assembly did not go far enough.Among the several shortcomings Lewis cited was that the state had not been able to assure adequate funding for its proposed changes.”The General Assembly cannot merely express in legislation that the amount of funding it provides for education is adequate,” he wrote.Lewis also found that some of the legislative language was not strong enough. For example, he wrote that getting the governor to “request” $300 million a year for classroom facilities does not really “require” the General Assembly to do anything.”The state has not implemented a systematic overhaul of the Ohio school funding system,” Lewis concluded. “As such, the state has failed to meet its burden of proving that its remedy complies with the mandates of the Ohio Supreme Court. The system for funding Ohio’s public schools continues to be unconstitutional.”Some Democrats called for lawmakers to accept what they dubbed a courageous decision and to work together to come up with a workable school funding remedy. But many Republicans criticized the decision and vowed to wait for the Supreme Court’s appeal ruling, which might come down sometime this summer, before they took any more action to rectify the situation.
University’s funding might be affected
So what does all of this mean to Ohio State University?Bill Napier, OSU’s special assistant to the president for government relations, said the university will also adopt the wait-and-see approach since higher education institutions are not directly involved in the decision. The case before Lewis, although commonly referred to as the “school funding” case, really involves only the state’s primary and secondary schools.But that doesn’t stop higher education officials from being concerned about what’s in store, Napier said.”If significant amounts [of the state budget] get moved to further fund primary and secondary education, I think the implications for higher education are obvious,” Napier said.Because voters overwhelmingly rejected a school funding remedy last May that would have increased the state sales tax, there’s a higher possibility, if the high court upholds Lewis’ ruling, that a larger portion of the state budget will have to go to primary and secondary education.That means that all other state-funded entities, including colleges and universities like OSU, could feel the crunch.However, it’s too early to forecast the decision’s effect on higher education funding, Napier said.What the Supreme Court will actually find is anyone’s guess, Napier said. The court’s 1997 decision was close, with three out of the seven justices dissenting.Jack Hershey, the Ohio House director of finance, said before Lewis’ decision that if the Supreme Court were to find the funding system still unconstitutional, it probably wouldn’t substantially affect the state budget until July 2001.Therefore, the question of whether the school-funding decision will affect the cost of attending OSU is “way too speculative to even try to answer,” Napier said.
OSU law professors pitched in with brief
But Ohio State’s involvement in the seven-year-old funding case does not stop there. Two OSU law professors wrote a brief when the issue was before the Supreme Court in 1996, and one professor is now in a key government position to represent the state’s side of the case.Edward Foley and David Goldberger’s friend-of-the-court brief, written for the Institute for Democracy in Education, is classified by the court as being in favor of finding Ohio’s pre-1996 school funding system unconstitutional.While Goldberger agreed with this classification, he stressed that the brief was limited to the argument that the Ohio Constitution requires that school districts be funded according to need. At that time, the funding system divided money among the school districts without adequately accounting for what districts actually needed, Goldberger said. But Foley has been Ohio’s state solicitor since January, and as such is usually responsibly for representing the state in civil cases such as the school funding case. Of course, in an appeal the state would contend that the system, with the assembly-proposed changes, is now constitutional.”I am not going to be involved in the case henceforth because I was involved before,” Foley said.Instead, Foley said Jeff Sutton may represent the state in an appeal. Sutton was state solicitor before Foley took the post, and is now employed at the Columbus law firm of Jones, Day, Reavis and Pogue. As state solicitor, Sutton represented the state in the school funding case during the 1996-97 Supreme Court hearings.Sutton, who is also an adjunct professor of law at OSU, said he could not comment on the matter. Attorney General Betty Montgomery and Deputy Attorney General Mike Weaver, who supervise the state solicitor, could not be reached over the weekend.Foley stressed that his removal from the case is not out of the ordinary.”This happens all the time when lawyers change jobs,” he said.